This is an appeal from the ET to the EAT. For a summary of the original ET case, click here.

Facts

Mr Jessemey was employed by Rowstock Ltd on 5 March 2008. He turned 65 years old on 17 January 2010. A year later, a Director of the company – Mr Davis – told him that the company did not wish to employ men over 65. He was given two weeks’ notice of his employment and was paid in lieu of this notice. On the 8 February 2011, Rowstock Ltd provided a very poor job reference about Mr Jessemey to an employment agency, from which he had sought assistance in finding work.

Rowstock Ltd gave ‘retirement’ as the principal reason for Mr Jessemey’s dismissal and conceded that it had not (by reason of alleged ignorance) complied with the statutory retirement procedures. Before the Employment Tribunal, Rowstock Ltd argued that the Polkey principle should apply – namely that, even if they had complied with the requisite procedures, Mr Jessemey would have lost his job in any event six months later.

Mr Jessemey claimed that the poor reference given amounted to unlawful victimisation.

The Employment Tribunal (ET) held that the dismissal had been manifestly and automatically unfair. It also rejected Rowstock’s argument so made no reduction in compensation. The ET also held that there was unlawful age discrimination so made an award to injury to feelings. The tribunal also felt that the poor reference had been given because tribunal proceedings had been pursued by Mr Jessemey but decided that it had no jurisdiction to give a remedy because of the Equality Act 2010 section 108(7).

Rowstock Ltd appealed to the Employment Appeal Tribunal (EAT) from the failure of the ET to make any deduction to reflect the Polkey principle. Mr Jessemey cross-appealed from the rejection of the victimisation claim and the Equality and Human Rights Commission (EHRC) intervened in support of the cross-appeal.

Decision

The EAT described the EHRC’s submissions as a “tour de force”. Their submissions developed every aspect that could possibly have been deployed in support of the appeal on post-employment victimisation. Their submissions considered various cases and strongly suggested that the act of giving the reference was victimisation.

The main issue that the EAT struggled with was that the Equality Act section 108(7) expressly dis-applies victimisation in “relationships that have ended”.

The EAT considered whether they had the jurisdiction to fill this lacuna or whether they could construe the interpretation of the statute in accordance with EU law. However they concluded, unanimously, that ‘such a reading…would be…flying directly in the face of what Parliament has actually enacted’. They held that no judicial tool was available to them and therefore dismissed this cross-appeal.

Rowstock Ltd argued that the ET must have treated itself as unable to apply Polkey, under the misapprehension that it had no application in a case of dismissal rendered automatically unfair. Rowstock Ltd also argued that even if the ET had taken the right approach in law, their reasoning does not adequately explain why the Polkey point was rejected.

The EAT felt that the ET’s reasoning failed to explain why it decided not to limit the compensation. The ET found that Rowstock Ltd had unfairly failed to adopt statutory procedures that might have allowed a fair dismissal on the same ground 6 months later, but it awarded compensation for a period of over 14 months. The EAT felt that the proper course in this case was to remit the question of compensation back to the same ET.

The EAT upheld Rowstock Ltd’s appeal. However, the EAT deemed that section 108(7) point is one of general importance on which there is no Court of Appeal authority. The EAT therefore granted permission for Mr Jessemey to appeal to the Court of Appeal on that point only.

The judgment is available here.

Note: this case was appealed to the Court of Appeal. A summary of that case is available here.

Rowstock Ltd & Anor v Jessemey (EHRC Intervening) UKEAT/0112/12/DM